Thoughts of an activist lawyer

Cybercrimes and Freedom of Expression

Despite the view of the United Nations Committee on Human Rights that Philippine criminal libel is contrary to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression, Congress and President Benigno Aquino III still enacted the Cybercrime Prevention Law which, among other things, added electronic libel as a new criminal offense.

Worse, this new law increased the penalty for cyber libel to prision mayor from the current prision correctional provided under the Revised Penal Code.

This means that electronic libel is now punished with imprisonment from six years and one day to up to 12 years, while those convicted for ordinary libel under the RPC are subject to imprisonment only from six months and one day to four years and two months. And because parole, a means by which a convict may be spared from actual imprisonment may be granted only to those sentenced to serve a prison term for no more than six months and one day, anyone convicted for cyber libel will inevitably serve a prison term.

Since the Philippines leads the rest of the world in terms of Facebook and Twitter usage, this means that unlike ordinary libel complaints which are oftentimes brought against printed newspapers -given the element of publication, any user of these leading social media tools is now liable for prosecution. The fact that an allegedly libelous writing appeared on the Internet is already sufficient to prove the element of publication.

The new Cybercrime law is an outright defiance of the UN Human Rights Committee View in the case of Alexander Adonis vs. Republic of the Philippines.

In that View, the UNHRC declared that Philippine libel law under the RPC contravenes freedom of expression on two counts: one, it is a disproportionate means by which to achieve its avowed goal of protecting the privacy of private persons; and two, because there is an alternative in the form of civil libel, or the payment of damages.

The UN HCR also took the view that our libel in the Philippines, because it does not recognize truth as a defense, is additionally defective on this ground.

While the View of the UNHRC is this instance is non-binding, the Philippines nonetheless is under an obligation to heed it because of the maxim “pacta sundt servanda”, or that treaty obligations must be complied with in good faith. The UN Human Rights Committee Views, since the membership of the body consist of leading experts in human rights, are accepted as authoritative on the issue of states compliance with their obligations under the ICCPR.

Simply put, the view against our libel law is very strong evidence of breach of a state obligation under the ICCPR And instead of heeding the UN’s call to review its existing libel law, Congress and President Aquino appeared to have slammed the body by enacting an even more draconian legislation against cyber libel.

Our constitutional commitment to freedom of expression has long been recognized. Justice Holmes, for instance, wrote: “When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .”

The commitment exists because it is only through freedom of expression that we are able to discern the truth and able to fiscalize despotic regimes: “The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.

By criminalizing internet libel, government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free market place of ideas- the internet. Prior to this law, it is ironic that the Philippines was even cited by the United Nations for not interfering with the internet. The law is a testament to the reality that despite the overwhelming mandate given to this administration, coupled with its unprecedented public approval ratings, it continues to be insecure and unable to compete in the market place of ideas.

We will see the Aquino administration in court on this one. And we will prevail. For unlike other laws that enjoy the presumption of regularity, this cybercrime law, insofar as it infringes on freedom of expression, will come to court with a very heavy presumption of unconstitutionality.

There can be nothing sadder than suing the son of icons of democracy for infringement into a cherished right.

Check out sections 6, 7, and 8. Not only does Sec 6 up the penalty for electronic libel by one degree, a person could be charged separately with libel under the RPC and be meted out a separate penalty. So, would that be 18 years total?

First, my apologies for another seemingly dissenting comment. But, I felt it is very necessary to ask since I’m sure I’m not the only one with this sentiment.

As it relates to this, I am reminded that the enjoyment of private reputation is as much a constitutional right as the possession of life, liberty or property.

Of course, we all know that the right to free speech is a constitutional right too. But, would it be right that everyone is granted carte blance in their freedom to speak their mind? Shouldn’t there be some controls to ensure we are not encroaching on the constitutional rights of others to the enjoyment of private reputation? And, in fact there is: our current libel law under the Art. 353 of the Revised Penal Code.

From what I gather, the libel law is essentially an exercise of the state’s police power to ensure that in our right to speak freely, we do not abuse it to a point where we are encroaching on the constitutional rights of others to the enjoyment of their private reputation. And, just the same it is not exploited, there are provisions to prevent frivolous claims thereof. Namely, the four essential elements to warrant it as such.

The bottomline is that it is not evident that this new law (more importantly, the current libel law) aims to suppress, or more importantly, violates our constitutional right to speak our mind on the Internet. The controls are merely to ensure we do not infringe on anyone’s constitutional right. So the question then is what is it about our libel laws that is unconstitutional?

I don’t know if you will recall but I asked the same question months ago in response to your post: “Freedom of expression vs. the right to enjoyment of a private reputation: The ‘Jan-Jan macho dance’ incident at the Wiling Willie show”. Perhaps it was overlooked.

[…] In his blog, Atty. Harry Roque – also of the UP College of Law – said, “And because parole, a means by which a convict may be spared from actual imprisonment may be granted only to those sentenced to serve a prison term for no more than six months and one day, anyone convicted for cyber libel will inevitably serve a prison term.” “By criminalizing internet libel, government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free market place of ideas – the internet,” Roque added. Haul the law to court While there is no way that the law can be repealed, Disini said it is up to advocates of anti-cyber libel to haul RA 10175 before the Supreme Court on a complaint of unconstitutionality. “The only one to stop this is the Supreme Court,” said Disini. A group of bloggers, interviewed on GMA News’ “SONA,” said they support the move and would likely file a case of unconstitutionality before the high tribunal. — VS, GMA New […]

Go on Atty. Harry please grab the first opportunity to test the constitionality of the Cyber Libel Law so that we shall also see the mindset of the suppose new Supreme Court under CJ Sereno. Noynoy maybe full of honesty but this is one of the weaknesses of Noynoy-lack of wisdom. Like her mother cory who is full of honesty but due to severe lack of wisdom she was not able to make good use of her revolutionary powers as she has retained many Marcosian Presidential Decrees that are despotic in nature.

[…] In his blog, Atty. Harry Roque – also of the UP College of Law – said, “And because parole, a means by which a convict may be spared from actual imprisonment may be granted only to those sentenced to serve a prison term for no more than six months and one day, anyone convicted for cyber libel will inevitably serve a prison term.” “By criminalizing internet libel, government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free market place of ideas – the internet,” Roque added. Haul the law to court While there is no way that the law can be repealed, Disini said it is up to advocates of anti-cyber libel to haul RA 10175 before the Supreme Court on a complaint of unconstitutionality. “The only one to stop this is the Supreme Court,” said Disini. A group of bloggers, interviewed on GMA News’ “SONA,” said they support the move and would likely file a case of unconstitutionality before the high tribunal. — VS, GMA New […]

What lawyer and activist Larry Lessig discusses below on copyright resonates strongly with this issue, specifically the point on criminalising internet libel which can be used to silence the voice of a generation that no longer can be silenced.
“It is technology that has made them different, and as we see what this technology can do, we need to recognize you can’t kill the instinct the technology produces. We can only criminalize it. We can’t stop our kids from using it. We can only drive it underground. We can’t make our kids passive again. We can only make them, quote, “pirates.” And is that good? We live in this weird time. It’s kind of age of prohibitions, where in many areas of our life, we live life constantly against the law. Ordinary people live life against the law, and that’s what I — we are doing to our kids. They live life knowing they live it against the law. That realization is extraordinarily corrosive, extraordinarily corrupting. And in a democracy, we ought to be able to do better. Do better, at least for them, if not for opening for business.http://www.ted.com/talk/larry_lessig_says_the_law_is_strangling_creativity.html

Defying this new law is neither a vote for irresponsible publication nor a license for defamation. It may make people double check their facts first before publishing, but it will harm freedom of speech more by forcing online (and offline) behaviour to change from one of critical (and creative) opinion-making to that of subservience. It will eventually impact the way we share, remix and mash-up content that represent our stand on issues — the stuff that makes the social Net the perfect breeding ground for hybrid content, diversity, and satire — all powerful tools for protest and counter-culture (whichever side you are on).